European

Article 50 of the Treaty on European Union (TEU) is the red button for the nuclear option of withdrawal from the EU, and in its design, it was never really, truly envisioned to be pressed. Without testing, and without precedent, we are left with no idea of the potential fallout of pressing that red button. Compared to the quasi-constitutionism of Article 2 TEU evoking the values ‘common to the Member States’ of ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women’; or the brutal legalism of Title VII of the Treaty of the Functioning of the European Union (TFEU) on competition, tax and the approximation of laws; Article 50 TEU is anaemic. It is, essentially, a button triggering a countdown clock, which is on a comparable level of advancement to the 1980s floppy disk.

The two-year countdown

Triggering Article 50 TEU will begin a two-year countdown to the end of UK Membership of the Union. Within that two-year period an agreement determining the withdrawal arrangements and the future relationship with the Union must be made. Barring a unanimous decision to extend the period, at the end of two years from the point of notification, the UK will no longer be a Member. The Treaties, and all rights and duties therein, cease to apply.

But now, as the British political establishment play a game of “pass the red button”, we are faced with some confounding, and concerning questions from a rights’ perspective. Likely to be lost in the two-year scramble for a political and trade agreement between the UK and EU, which will attempt at all costs to avoid the fall-back position of the application of WTO trade rules, are the very rights and values held as common between the (ex-)Member State(s). During that two-year period, EU law and (pertinently) EU rights will continue to apply in the UK. Free movement will still be (from a legal perspective) free, and claimants may still rely on their EU rights in the Courts. But then what? What happens when the clock strikes zero? Continue reading →

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Schindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 469 20 May 2016 – read judgment

Last month, I posted here on this challenge to the rule stopping long-time expatriates from voting on the Brexit proposals. The case went swiftly to the Court of Appeal, who, today, swiftly dismissed the expats’ appeal.

The challengers said that the 15 year rule on voting was an unjustified restriction of the rights of freedom of movement under EU law, not least because if the UK were to leave the EU, they would end up without rights of abode in their current EU countries.

In a speech about Brexit last week, the Home Secretary shared what she called her “hard-headed analysis”: membership of an unreformed EU makes us safer, but – beware the non-sequitur – we must withdraw from the European Convention on Human Rights, which does not.

It is surely time for some clearer Government thinking about these questions. If politicians could put politics to one side, they might recognise that the Convention and the Strasbourg court are not enemies of our sovereignty, but there are aspects of EU law as applied by the Court of Justice in Luxembourg which are.

Some legal oratory flows into the profound, beautiful and inspiring. Most of the time when it comes to poetry – as this particularly appalling ditty is designed to demonstrate – we lawyers should stick to the day job.*

This week human rights commentators celebrated both World Poetry Day and the launch of a new project on the conservative commitment to human rights. Announcing a Commission made up of MPs and commentators – including Maria Miller MP, Dominic Grieve QC MP and Matthew D’Ancona – Bright Blue this week published a series of essays by Conservative leaders on a range of human rights threats; from the refugee crisis to the repeal of the Human Rights Act.

Bright Blue now joins the Labour Campaign for Human Rights in taking steps to take the current debate beyond the heat and light of party politics and into a greater conversation about how we protect the rights of the most vulnerable in our communities and about the UK’s place in the world.

This is a wintry double-bill on two recently decided cases about water quality, quantity, fish – and causation.

In the first, Seiont, Snowdonian anglers complained that the Welsh water regulator (Natural Resources Wales or NRW) had misunderstood what was required by the Environmental Liability Directive in respect of Llyn Padarn, a freshwater lake the home of the Arctic charr, Salvelinus alpinus. So they sought judicial review of NRW’s decision.

The main legal question was – did environmental damage within the Directive include slowing down recovery from previous damage, as the anglers argued, or was it confined to deterioration from an existing state (as the regulator had decided)?

Hickinbottom J held the latter, and the claim was dismissed.

In the second case, the claimant owners of fishing lakes in Norfolk said that their neighbours, in constructing rival lakes (without planning permission) had caused water levels to fall, and hence loss of fish and consequent income. Had that been established, the claimants would have had a claim for breach of statutory duty under section 48A Water Resources Act 1991. Such a claim, the judge held, would have been a strict liability one, in which foreseeability of damage played no part.

But the claimants lost on the facts, not before the judge had given an interesting analysis of the law of causation in this field.

Bank Mellat is an Iranian bank, initially subjected to a 2009 order which prohibited anybody in the UK from dealing with it – until the Supreme Court quashed it: here, and my posts here and here.

The Treasury tried again, by orders made in 2011 and 2012 addressed at all Iranian banks, not just Bank Mellat. The EU has now taken over regulation of these banks.

In the current proceedings, the Bank seeks to set the 2011 and 2012 orders aside. These restrictions are, the Treasury says, addressed at the financing of Iran’s nuclear programme, in which all Iranian banks are complicit. Bank Mellat denies this, and the conundrum in the case is how to make sure that the challenge is fairly tried. Collins J (my post here) thought that the Treasury had not revealed enough about its case, and, in substance, on appeal the CA agreed.

Not primarily about migration, but a case arising out of the long-running conflict between Morocco, as occupying power, and the Western Sahara as occupied territory. For many years, the UN has recognised the Western Sahara as a non-self-governing territory which is entitled to exercise its right of self-determination. Morocco does not agree, and has done what occupying powers do, namely send in Moroccan nationals to flood the existing populations, add troops, and commit human rights abuses, according to evidence filed in the case.

You may be wondering how this North-West African problem got to London’s Administrative Court. This is because the challenge is to two EU measures concerning Morocco. The first is a preferential tariff (administered by HMRC) applicable to imports from Morocco of goods originating from the Western Sahara. The second concerns the intended application of an EU-Morocco fisheries agreement about fishing in the territorial waters of Western Sahara.

Disclaimer

This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.